Estate of Desterbecque, In re

Decision Date10 December 1990
Docket NumberNos. 16686,16720,s. 16686
Citation800 S.W.2d 142
PartiesIn re ESTATE OF Charles L. DESTERBECQUE, Deceased. G. Stanley MOORE, Personal Representative, Respondent, v. John Nathan FRY, Appellant.
CourtMissouri Court of Appeals

G. Stanley Moore, Donnelly, Baldwin, Wilhite & Moore, Lebanon, for respondent.

J. Christopher Allen, O'Neil & Allen, Lebanon, for appellant.

MAUS, Presiding Judge.

Charles L. Desterbecque (Desterbecque) died intestate on August 20, 1989, a resident of Dallas County, owning one tract of real property and diverse items of tangible and intangible personal property. On August 30, 1989, G. Stanley Moore was appointed Personal Representative of the estate. Appellant John Nathan Fry (Fry) claims the decedent was bound by a contract to devise his entire estate to Fry. Without notice or hearing, the Probate Division entered an order to sell the tangible personal property at public sale. Fry's appeal from that order is Case No. 16686 in this court. Subsequently, following notice and hearing, the Probate Division entered an order to sell the real property at public sale. Fry's appeal from that order is Case No. 16720 in this court. After each appeal was separately perfected and briefed, the appeals were consolidated for oral argument and disposition.

The following is an outline of the procedural background relevant to the appeals.

September 27, 1989--Inventory and appraisement filed

October 10, 1989--Petition for sale of personal property filed

October 10, 1989--Petition for sale of real property filed

October 16, 1989--Order to sell personal property entered

October 31, 1989--Hearing on petition to sell real property. Matter taken under advisement

November 20, 1989--Order to sell real property entered

November 27, 1989--Notice of appeal from order to sell personal property filed

December 18, 1989--Notice of appeal from order to sell real property filed

Fry appeared in person and by counsel and participated in the hearing upon the petition to sell real property. He did not file a written objection to such a sale, but orally objected to the same. He based his right to object upon an alleged contract whereby the decedent agreed to devise his entire estate to Fry. He introduced in evidence a copy of his petition that he filed on October 27, 1989, in the Circuit Court of Dallas County. The defendants were the Personal Representative and Desterbecque's heirs. By Count I of that petition, Fry seeks specific performance of the alleged contract to devise. In alternative counts, Fry seeks to recover damages for the breach of that contract or upon the basis of quantum meruit. The petition had not been served upon any of the defendants at the time of the hearing on the petition to sell real property.

In general, the evidence at the hearing to sell real property developed the following facts. Fry and the decedent had lived together for 14 years. In November 1987, the two of them moved from Indianapolis to a house decedent had purchased in Dallas County. They were living there at the time of decedent's death. Fry moved from that house upon the demand of the Personal Representative. Fry testified that items of the estate's personal property were unique because they had been accumulated by the duo during the time they lived together and because of sentimental attachment. He also testified the real property was unique because of several factors including its location. As stated, after receiving briefs from the parties and taking the matter under advisement, the Probate Division entered an order to sell the real property at public sale. That order was premised upon the following finding: "[T]hat the sale of said property is necessary for the interests of the estate."

The Personal Representative filed motions to dismiss the appeals because each notice of appeal was not timely filed. He first argues that each order in question was final when entered and neither notice was filed within 10 days thereafter as required by Rule 81.04(a). He then argues that even if each order was final 30 days after it was entered, the notices are untimely. He contends the notice in Case No 16686 was late because it was filed 42 days after the order to sell personal property was entered. He contends the notice in Case No. 16720 is premature because it was filed 28 days after the order to sell real property was entered.

These motions and other facets of these appeals require this court to consider the finality of the two orders and the rules and statutes governing appeals therefrom. Basic to that consideration are the following relevant provisions prescribing the applicability of the Rules of Civil Procedure (Rules).

"41.01. (a) Rules 41 through 101 shall govern the following:

. . . . .

(2) Civil actions pending before a circuit judge except those actions governed by the Probate Code;

. . . . .

(b) Civil actions originating before an associate circuit judge or in the probate division of the circuit court but which are pending in the Supreme Court, Court of Appeals, or before a circuit judge, other than a circuit judge in the probate division, shall be governed by Rules 41 through 101, except that Rule 55 shall not apply unless the court orders the application of Rule 55, or specified portions of it, and a copy of such order is served upon each of the parties or their attorneys. Such order shall specify the provisions of Rule 55 which shall be complied with and the time for compliance.

(c) Rules 41, 56, 57, 58, 59, 60, 61, and 62 apply to proceedings in the probate division of the circuit court.

. . . . .

(e) The judge of the probate division of the circuit court may order that any or all of Rules 41 through 101 shall be applicable in a particular matter."

Nevertheless, at first blush, the matter would seem to be resolved by the following two statutes.

"All appeals shall be taken within the time prescribed by the rules of civil procedure relating to appeals." § 472.180.

"Appeals shall be taken in accordance with the rules of civil procedure relating to appeals." § 472.210.

However, the Personal Representative points out that neither statute prescribes when an order or judgment is final. He argues that the policy of expediting appeals, State ex rel. Estate of Seiser v. Lasky, 565 S.W.2d 792 (Mo.App.1978), and the precedent of former § 472.180 prescribing a fixed number of days for appeal supports the proposition that such orders were final when entered.

Fry argues that the two orders resulted from adversary proceedings and that, subject to exceptions not here applicable, "[a]n adversary probate proceeding shall be governed by the civil code of Missouri and the rules of civil procedure". § 472.141.1. Fry then relies upon the following:

"For the purpose of ascertaining the time within which an appeal may be taken, a judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed...." Rule 81.05(a).

Fry's argument is based upon a false premise. The following is the relevant portion of the statute defining an adversary proceeding.

" 'Adversary probate proceeding' as used in this section and in section 472.141 means any proceeding brought pursuant to any provision of chapters 472, 473, 474, and 475, RSMo, which requires, as a condition precedent to an entry of an order or judgment on the merits, notice of hearing to persons interested in the proceeding, except that proceedings to sell real property ... shall not be deemed to be adversary unless and until an interested person files objections to the action proposed or the account stated...." § 472.140.2.

Presumably, the foregoing requirement of notice refers to notice required by statute, see § 472.100, as distinguished from notice required by due process, see Tulsa Collection Servs. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). The applicable statute prescribes that a petition to sell personal property "may be heard with or without notice as the court directs." § 473.487. The proceeding to sell personal property was not an adversary proceeding within the meaning of § 472.140.2. No interested person filed an objection to the proposed sale of real property and that proceeding was not such an adversary proceeding.

Section 472.141.3 provides:

"The civil code of Missouri and the rules of civil procedure shall govern all other actions or proceedings which may be heard by a judge of the probate division pursuant to assignment or otherwise, except as otherwise provided by law."

That section is regarded as referring to non-probate proceedings heard in the probate division. Hanna & Borron, 5 Mo.Prac., Probate Law and Practice, § 511 (2d ed. 1988).

In summary, neither order was entered in a proceeding defined as an adversary proceeding in § 472.140, or a proceeding encompassed by § 472.141.3 so as to invoke the application of Rule 81.05.

However, this does not establish that the finality of the orders is not determined by Rule 81.05. As noted, the directly controlling statutes prescribe that appeals shall be taken within the time, § 472.180, and in accordance with the Rules, § 472.210. While these statutes do not expressly prescribe when an order is final, it is logical to conclude finality is to be determined by the Rules referred to in those statutes, which include Rule 81.05 prescribing when an order becomes final. This result has been reached without discussion in several cases. State ex rel. Baldwin v. Dandurand, 785 S.W.2d 547 (Mo. banc 1990); Estate of Veselich v. Northwestern Nat. Cas. Co., 760 S.W.2d 564 (Mo.App.1988); Goldberg v. Mos, 631 S.W.2d 342 (Mo.1982). The rationale for that result has been expressed in the following terms.

"The Probate Code does not by statute more explicitly define a final judgment. Nor does it other than by reference prescribe the time within which an appeal must be taken after a judgment has become final. By...

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7 cases
  • Jones v. State
    • United States
    • Missouri Court of Appeals
    • 5 de dezembro de 2018
    ... ... That assumption is incorrect. The Missouri Probate Code is contained in Chapters 472, 473, 474 and 475. See 472.010(5); Estate of Wilson , 938 S.W.2d 607, 611 n.13 (Mo. App. 1997). Chapter 472 contains the general provisions of the Probate Code. The applicability of 472.060 ... Hanna & Borron, 5 Mo. Prac., Probate Law and Practice, 511 (2d ed. 1988)." In re Estate of Desterbecque , 800 S.W.2d 142, 146 (Mo. App. 1990), overruled on other grounds by In re Estate of Standley , 204 S.W.3d 745 (Mo. App. 2006).4 One such non-probate ... ...
  • Sweeney, Matter of, 19402
    • United States
    • Missouri Court of Appeals
    • 2 de maio de 1995
    ...This district previously held that Rule 81.05 is included in those rules referred to in §§ 472.180 and 472.210. In re Estate of Desterbecque, 800 S.W.2d 142, 146 (Mo.App.1990). That was true although Rule 81 is also not listed in the rules applicable to probate proceedings by Rule 41.01. Ru......
  • In re Estate of Standley
    • United States
    • Missouri Court of Appeals
    • 7 de novembro de 2006
    ... ... It is clear that pursuant to section 472.160 the probate court's determination here constituted either an "interlocutory judgment" or an "order." ... 9. We note that in In re Estate of Desterbecque, 800 S.W.2d 142, 144 (Mo.App.1990), the probate court entered separate orders to sell personal property and real property belonging to the decedent's estate. The Desterbecque appellant then filed his notice of appeal from the probate court's order to sell personal property 42 days after the ... ...
  • In Re: George Leonard Kraus
    • United States
    • Missouri Court of Appeals
    • 31 de agosto de 2010
    ... ... , JJ.ALOK AHUJA, Judge.        The Missouri Department of Mental Health appeals an order entered in probate proceedings involving the Estate of George Leonard Kraus. Because the Department's notice of appeal was untimely, we dismiss the appeal.Factual Background        Mr. Kraus ... Standley, however, the Southern District, sitting en banc, overruled its prior decision in 318 S.W.3d 277 ... In re Estate of Desterbecque, 800 S.W.2d 142 (Mo.App. S.D.1990), and held that Rule 81.05 does not apply to interlocutory probate orders appealable under § 472.160.1(1)-(13) ... ...
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